Charo & another v Republic (Criminal Appeal 4 of 2021) [2024] KECA 558 (KLR)
The bottom line
#Kenya's Court of Appeal freed two men convicted of murder because prosecutors ignored glaring contradictions in dates and failed to call key eyewitnesses.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution proved the case against the appellants beyond reasonable doubt
- 2.Whether the inconsistencies and contradictions in the prosecution evidence were material and went to the substance of the prosecution case
- 3.Whether failure to produce the post mortem report as an exhibit and failure to call crucial witnesses (the treating doctor and the clan elder Sendeya) left a fatal lacuna in the prosecution case
Key legal issues
#Material contradictions in prosecution evidence
The inconsistencies as to the dates of the attack and death were irreconcilable and went to the very root of the prosecution case, rendering the conviction unsafe.
The evidence of PW1, PW2, PW3 and PW4 gave mutually contradictory dates for the assault and death. The treatment notes (30 April 2018) and post mortem report (dated 10 May 2018, indicating death around 3 May 2018) contradicted every witness's account. The discrepancies could not be reconciled and vitiated the proof of the charge.
Failure to call crucial witnesses
The omission of the clan elder Sendeya, an eyewitness present when the injuries were inflicted, left a lacuna that shattered the prosecution case; the trial court should have summoned him under section 150 CPC.
The prosecution bears a duty to call witnesses necessary to establish the truth; where evidence is barely adequate, adverse inference may be drawn. Sendeya was present from the onset of the dispute and knew who attacked the deceased and with what weapons. The trial court had the right and duty to summon him, subject to cross-examination.
Identification of who inflicted the fatal injuries
No prosecution witness witnessed the attack; the trial judge's finding that the appellants were armed with clubs was conjecture unsupported by the medical evidence.
The medical treatment notes and post mortem form did not support a finding that the appellants were armed with clubs, and there was no evidence anyone in their company carried a weapon. The deceased was last seen alive in the clan elder's home; the prosecution adduced no evidence of who inflicted the cuts.
Burden and standard of proof
The prosecution did not discharge its burden of proving guilt beyond reasonable doubt.
The unresolved inconsistencies, material contradictions and failure to call crucial witnesses meant the evidence was barely sufficient to establish the case against the appellants; there was no evidence on which a conviction could safely rest.
Legal principles established
#- A first appellate court must subject the evidence to a fresh and exhaustive examination and make its own findings, not merely defer to the trial court.
- Where evidence called by the prosecution is barely adequate, the court may infer that the evidence of an uncalled witness would have been adverse to the prosecution, and the trial court has a duty to summon a witness whose evidence is essential to the just decision of the case.
- A trial court may, under section 150 CPC, summon any person whose evidence appears essential to the just decision of the case.
Court orders
#- 1.Appeal of both appellants allowed
- 2.Conviction of the appellants set aside
- 3.Sentences of the appellants quashed
- 4.Appellants set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we allow the appeal, set aside the conviction of the appellants and quash their sentences. We set the appellants at liberty forthwith unless otherwise lawfully held.
The failure to call crucial witnesses to testify left a lacuna in the prosecution case that left the prosecution evidence in shambles and a complete mess.
Where the evidence called is barely adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.
We find that the prosecution did not discharge its burden of proof in this case, and that the evidence adduced in its case was barely suficient to establish the case against the appellants.
His conclusion seems to be conjecture rather than based on the evidence before him.
Issues in the judgment
#Judgment contains internally conflicting dates of the incident (trial record refers to dates including 1 May 2018, 29/30 June 2018, 30 April 2018 and 30 May 2018), though this was itself a ground of appeal and noted by the court.
Inconsistent statement about the state counsel's written submissions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo & another v Republic (Criminal Appeal 4 of 2021) [2024] KECA 558 (KLR)", Case Analysis (2024). Criminal Appeal (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/558/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.